TaxTMI 
TaxTMI 
2023 (8) TMI 1686
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....yet another manifestation of the recur- ring phenomenon seeking indulgence to intercede and quash FIR No. 246, dated 18th September 2019 (hereinafter referred to as 'Annexure P-1'), registered under Section 174- A ibidat Police Station, City Rajpura, District Patiala. FIR has been lodged as a consequence of trial court order dated 31.08.2019,emanating from the criminal proceedings initiated in a complaint filed under Section 138 of the Negotiable Instruments Act. 3. Succinct facts first, as pleaded in the petition. 3.1 Complainant-Bhagwan Dass (since deceased, now represented through LR- Ashwani Kumar-respondent No. 2 herein) filed a criminal complaint against the petitioner under Section 138 of the Negotiable Instrument Act, 1881(for short 'NIA Act'). The petitioner states that he never received any Court summons or warrant of arrest. Being unaware, he could not appear before the concerned Court. Consequently, learned trial Court, vide order dated 31.08.2019, declared the petitioner as proclaimed person. Said order led to registration of an FIR dated 18.09.2019 against the petitioner under Section 174-A of the IPC. 3.2. Petitioner surrendered before the tr....
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.... days has already elapsed from the date of execution of proclamation but accused has not appeared. Accordingly, the accused is declared as proclaimed person. The complainant appeared and submitted that he has no knowledge about the property of the accused at present and he would intimate the court as and when he gets to know about property of the accused. Since accused has been declared as proclaimed person and list of property of accused has not been filed by the complainant, therefore, file is ordered to be consigned to the record room with a direction that the same be put up before the court as and when accused is arrested or surrenders in the court or list of property of accused is filed by the complainant." Impugned FIR shows that it was registered on the basis of order dated 31.08.2019 received from the learned Judicial Magistrate Ist Class, Rajpura, vide a separate order dated 13.09.2019. Said subsequent order dated 13.09.2019, also reproduced in the FIR, reads as under: "Copy of order 31.08.2019 forwarded to SHO, PS City, Rajpura for information, necessary action against the accused and initiate proceedings u/s 174-A against the accused and send intimat....
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.... (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. (4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to ap- pear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect. (5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation pu....
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....f some other public servant/Judge to whom he is administratively subordinate. This being the position, after declaring the petitioner a proclaimed person, if at all the learned Magistrate had desired and decided to proceed against the petitioner for an offence under Section 174-A of IPC, the prescribed course for him was to institute a complaint in writing in the competent jurisdictional Court. Instead of that, the learned trial Court adopted a short but wrong cut and just sent a copy of his orders to the local police for initiation of proceeding sunder Section 174-A against the petitioner (obviously by registration of an FIR). 12.6. In my opinion, the orders passed and sent to the local police by the learned Magistrate directing for initiation of proceedings under Section 174-A against the petitioner and the impugned FIR, Annexure P-1, registered thereupon at Police Station, City, Rajpura are in violation of the relevant provisions of Section 195 of the Code, under which a criminal complainant had to be filed by the learned Magistrate in the jurisdictional Court. Orders dated 31.08.2019 and 13.09.2019 reproduced above directing initiation of proceedings under Section 174-A agai....
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....ing given my thought further on the reasoning given in Maneesh- Goomer's case (supra), with utmost respect, I have a different take on the same. Notably, introduction of Section 174-A into the IPC was accompanied by a corresponding amendment in Schedule 1 of the Cr.P.C. This amendment classified the aforementioned offence as cognizable. However, Section 195 of the Cr. P.C. wasconsciously not amended correspondingly to exclude Section 174-A from its ambit, as is now being proposed through Section 215 of 'The Bhartiya Nagrik Suraksha Sanhita 2023 Bill'. Said Bill currently under consideration of the legislature. The omission of Section 174-A from the scope of Section 195 of the Cr. P.C cannot, therefore, be also characterized as a mere oversight, especially in light of the deliberate amendment in Schedule-1, while Section 195ibidwas conspicuously left untouched. 12.10 Intent of the legislature is clearly borne out from the now proposed/draft amendment through Section 215 of 'The Bhartiya Nagrik Suraksha Sanhita Bill 2023'. Said enactment is though still pending, but for the sake of discussion herein, the same [as well as now proposed Section 207 (same as earlie....
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.... inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in Section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or at- tempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clau....
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....ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant or by some other public servant who has been authorised to do so by him under clause (a) of sub-section (1), any authority to which he is administratively subordinate or who has authorised such public servant may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences ....
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....ing an offense classified as cognizable, the police have the authority to arrest the accused without a warrant. However, Section 195 of the Cr. P.C. bars any Court from taking its cognizance except on the complaint in writing made by the Court/Public servant concerned. This creates an anomalous situation where an individual who is accused under Section 174-A IPC could potentially be arrested without a warrant, yet the legal requirement for his prosecution for such an offense is by way of filing a complaint under Section 195 of the Cr. P.C. 12.14. The incongruity, if any, in the legal framework rather warrants a closer ex- amination of legislative intent. The statutory insistence ibid, of filing of complaint by public servant/court concerned is in tune with fundamental right to personal liberty as enshrined under Article 21 of the Constitution of India. The same underscores the importance of aligning legal provisions to ensure that personal liberty of an individual is given paramount consideration, given that an individual who is declared as proclaimed person or offender, as the case may be, is a mere suspect/under trial and not yet a declared culprit. He is also equally entitled....
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.... Criminal Procedure (hereafter referred to as 'the Code'), carries with it the consequential implication of attachment and sale of his property as delineated in Sections 83, 84, and 85 of the Code. Furthermore, such a declaration triggers the criminal liability of the individual under Section 174-A of the Indian Penal Code, with a potential sentence of up to seven years of imprisonment, coupled with a monetary penalty. This, in turn, has profound and far-reaching ramifications, significantly affecting the fundamental rights to life, liberty and property of the concerned individual. Hence, it becomes imperative that the Courts meticulously adhere to the statutory requirements in letter and spirit both, duly reflecting their compliance on the record prior to pronouncing an individual as a proclaimed person or offender and invoking criminal liability under the aforementioned section. 13.2 Section 82(1) of the Code mandates that a proclamation shall require the concerned individual to appear at a specified place and time, with no less than thirty days' notice from the date of proclamation publication. Sub-Section (2) provides comprehensive guidance on the publication of ....
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....ory requirements, meticulously documenting their compliance in both form and sub- stance before pronouncing an individual as a proclaimed person or offender and initiating action under Section 174-A of the IPC. 14.1. In this context of issuance and publication proclamation vis-à-vis safe- guards thereof, reference may be had to the guidelines and principles enunciated after threadbare analysis by Delhi High Court in a judgment rendered in case titled Sunil Tyagi v/s Govt of NCT of Delhi and another [(2021) 4 High Court Cases (Del) 723]. Relevant thereof is below :- "442. Proclamation only on deliberate concealment - The police has to submit a report before the Court that the person against whom the warrant was issued, has absconded or is concealing himself. 442. Concealment has to be deliberate - The concealment has to be deliberate for the purpose of avoiding arrest. The mere fact that the police could not find the accused, is not enough. 444. Mere non-availability at address is not sufficient - Mere non- availability at the address is not sufficient unless the concealment is deliberate to avoid arrest. A person who had gone abroad before the i....
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....ason to believe' in Section 82 CrPC means that the Court has to be subjectively satisfied from the materials before it that the person has absconded or has concealed. 448. Court to examine executing officer - Before issuing a proclamation, the Court shall examine the officer with respect to the measures taken by him to exe- cute the warrants. 449. Issuance of arrest warrant a pre-condition - Issuance of an arrest warrant and the accused found absconding, are pre-conditions for issuing proclamation. 450. NBW and Section 82 CrPC not to be issued together - Simultaneous issuance of both the processes, namely, warrant of arrest and proclamation is ex-facie contradictory, since it is only after the former that the latter can be issued where the concerned person has absconded or is hiding. 451. Pre-requisites to the publication of a proclamation under Section 82(2)(ii) CrPC - Prior to publication under Section 82(2)(ii) CrPC the Police Officer may be mandatorily required to file an Affidavit disclosing: A picture showing that proclamation has been affixed in a conspicuous place of the house where the person resides. The picture must be taken in a m....
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....oner was issued; what was the date specified therein for the petitioner to appear in Court; when the proclamation was actually published; whether it was publicly read in some conspicuous place of the town or village in which the petitioner ordinarily resided; whether it was affixed to some conspicuous part of the house or homestead in which the petitioner ordinarily resided or to some conspicuous place of such town or village; whether a copy thereof was also affixed to some conspicuous part of the court-house. Further, the order ibid does not contain a statement by the Court to the effect that the proclamation was duly published on a specified day and in the manner specified in clause (i) of Sub-Section (2). These facts were not even noticed in the order passed by the Court. It cannot, therefore, be said that they were present in mind of the Court, were taken into consideration and the Court had satisfied itself about the compliance of relevant requirements before passing the order dated 31.08.2019 declaring the petitioner a proclaimed person. 15.2 Even if it is assumed that the Court had satisfied itself about the compliance of relevant requirements before passing the order dat....
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....itioner u/s 174- A IPC, are also quashed. 18. Pending application(s), if any, shall also disposed of. 19. Before parting with the case, having had the benefit of judgment in Sunil Tyagi supra, it is considered desirable to frame guidelines for issuance of a proclamation under Section 82 of the Code of Criminal Procedure, it's publication, declaring the concerned person as 'proclaimed person' or 'proclaimed offender' and where considered necessary, to invoke criminal proceedings against person for offence under Section 74-A of IPC. Accordingly, the following guidelines are being framed: Issuance of proclamation : i. Preceding the issuance of the proclamation under section 82 Cr. P.C., the Court must deliberate upon its previous efforts to secure the presence of the through other legally permissible means. These efforts encompass the issuance of summons, the execution of bailable and/or non-bailable warrants against the accused. The Court must thoroughly document the results stemming from these endeavours, accompanied by pertinent facts and comprehensive details. It is incumbent upon the Court to satisfactorily ascertain that the individual in qu....
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...."proclaimed person" or "proclaimed offender: viii. Prior to the declaration of the concerned individual as a "proclaimed person" or "proclaimed offender," the Court shall pass a speaking order stating relevant facts and record its satisfaction that the proclamation has been duly and properly published in the prescribed manner. ix. Furthermore, it must ensure that a period of not less than thirty days has expired between the date of publication of the proclamation and the date indicated in the proclamation for the individual's appearance. If the interval between the proclamation's publication and the date specified therein for appearance falls short of thirty days, such a publication of the proclamation cannot serve as the foundation for designating the individual in question as a "proclaimed person" or "proclaimed offender." x. A person can be declared "Proclaimed offender" only where the proclamation published under sub-section (1) of section 82 Cr. P.C. is in respect of any of the offences as per table given below :- OFFENCE UNDER IPC PARTICULARS 302. Punishment for murder 304. Culpable Homicide not amounting to murder 364. ....
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....proclamation under subsection (1) of Section 82 of the Code. xv. Consequently, it follows that even subsequent to the formal declaration of an individual as a "proclaimed person" or "proclaimed offender," the Court still retains the discretion to determine whether it is judicious to initiate the rigorous criminal proceedings under Section 174-A of the IPC, being mindful that the offence carries a punishment of imprisonment for up to seven years, coupled with a fine. xvi. In arriving at such a pivotal decision, the Court should exercise due circumspection, once more apply its mind to the facts and circumstances of each case considering the majesty of law vis-à-vis the nature and gravity of the offence that triggered the publication of the proclamation under subsection (1) of Section 82 of the Cr. P.C .; the potential impact of said offence on the victim or society at large; steps, if any, taken for the attachment and sale of property of the person concerned and the result thereof; the stage/status of the ongoing trial, any mitigating factors that may favor the proclaimed person or offender, and conversely, any aggravating factors against them. It is thereaft....